Wills are typically described as “ambulatory” which means that they possess no force or effect prior to the death of the testator. Where the beneficiary of a gift predeceases the testator then as a general rule the gift will fail or “lapse”. Note that a deemed predecease will arise in various cases such as the effect of divorce on a gift made by one spouse to another. The effect is that for the purpose of any gift to that spouse the survivor will be deemed to have predeceased the testator[1]. Another less well known example is the effect of renunciation of a gift. The Estates of Deceased Persons
(Forfeiture Rule and Law of Succession) Act 2011 came into force on 1.2.2012.
Section 2 of that Act introduced a new section 33A into the Wills Act 1837. The new s 33A (2) provides that where a will contains a devise and the legatee disclaims it (or forfeits): “The person is, unless a contrary intention appears by the will, to be treated for the purposes of the Wills Act 1837 as having died immediately before the testator”.
Thus any actual or deemed pre-decease will usually mean the gift lapses back into residue, or into a partial intestacy if there is no residue or if indeed it is the residuary gift itself which lapses. A well-drafted will often contains substitutions and alternatives, but what if it does not? Even then the Gift may not lapse if it falls into the following special cases.
Special Cases
1. Moral Obligation
This is a gift which discharges a moral obligation recognised in the will, and which still exists at the testator’s death. In these cases – the scope of which is not certain – the gift does not lapse, the inference being that the testator intended the gift to pass into the estate of the beneficiary, should they die first. The most obvious case of such an obligation is where the legacy is in some way connected with the repayment of a debt.
2. Pursuant to s 33(1) of the Wills Act 1837 (the Wills Act) for the issue of the testator
Section 33(1) provides that:
where a will contains a devise or bequest to a child or remoter descendant of the testator; and the intended beneficiary dies before the testator, leaving issue; and issue of the intended beneficiary are living at the testator’s death, then, unless a contrary intention appears by the will, the devise or bequest shall take effect as a devise or bequest to the issue living at the testator’s death’.
Thus where Arthur leaves the residue of his estate to his two sons Brian and Colin, in equal shares. The eldest son Brian dies before Arthur, leaving two children. Section 33(1) of the Wills Act operates to ensure that the two grandchildren of Arthur (Brian’s children) take Brian’s half in equal shares. The same effect would be seen even if Brian survived Arthur but disclaimed his gift because of s33 A (2).
3. Accruers in the will
This really is more of an artefact of drafting than an exception as such. The effect of an accruer is that the failed legacy or bequest accrues or is added to another legacy or bequest that already exists under the will. An accruer is often implied or “implicit” in the form in which the gift is drafted. Where, for example, a testator makes a gift to two or more people and it is clear that the failed share of any who predecease the testator will increase the share(s) of those who survive, there will be an implicit accruer. An example can be seen if you take the facts of the last example and presume that Brian died childless or was childless when he renounced. Express Accruers are obviously those that are included in the will as specific provision.
4. Class Gifts
Another artefact of drafting and interpretation is the exception for a “class gift”. Where a testator makes a gift to a class of people under his will, such as to their “grandchildren”, a person who could be (potentially) a member of the class and who predeceases the testator cannot be within the class since the class is only ascertained at the time of death. Section 33 will apply to a class gift provided the class consists of children or remoter descendants of the testator but only in the absence of contrary intention in the will. The effect is to substitute the issue (if they have any) of the pre deceased (e.g.) grandchild with no accrual to the other members of the class. There is no general benefit to the estate of the predeceased class member, so if by the time of the testator’s death the deceased class member’s children have also died, then on those facts there will be an implicit accruer for the benefit of those who survive or have left surviving offspring.
5. Charities – the Cy Pres doctrine
The Cy Pres doctrine means that charitable gifts to charities which have ceased to exist at the date of death can be applied to benefit other charities which are to use more modern French “Si Pres” or So Near to the charity which the testator intended. Usually it is necessary to find a wider charitable intention to the Will, although this is very much a matter for construction, such an application can be formally made to the Court by the executors for directions, but in the case of small estates the opinion of experienced Counsel might be sought instead and the executors can then proceed with safety on that basis.
Gareth Jones
Barrister